CULLINANE v. BOARD OF SELECTMAN OF MAYNARD

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CULLINANE

v.

BOARD OF SELECTMAN OF MAYNARD

99-P-53 Appeals Court

EVELYN CULLINANE vs.
BOARD OF SELECTMEN OF MAYNARD.

No. 99-P-53.

Middlesex. November 6, 2000. -
February 9, 2001.

Present: Jacobs, Kaplan, &
Gillerman, JJ.

Dog. Nuisance.

Petition filed in the
Concord Division of the District Court Department on February 6,
1997.

The case was heard by Barbara
S. Pearson, J.

Civil action commenced in
the Superior Court Department on September 5, 1997.

The case was heard by Stephen
E. Neel, J., on motions for summary judgment.

Steven M. Wise for the
plaintiff.

John H. Perten for the
defendant.

KAPLAN, J.

This proceeding started with a complaint to the
Maynard board of selectmen suggesting, in effect, that two dogs,
"Shadow," a female Rottweiler, and her daughter
"Misty," a mixed breed, were a pair constituting (to
quote from G. L. c. 140, ? 157[1]) "a
nuisance by reason of vicious disposition," and seeking
remedy by an "order concerning the restraint or
disposal" of the dogs. The proceeding has wound its way from
selectmen to clerk-magistrate to judge of District Court to
Superior Court with regrettable slowness; it is now in its fifth
year with the dogs left meanwhile in custody of the town’s dog
officer. The judgment of the Superior Court under review ordered
the humane killing of both dogs. Pending the appeal, some six
weeks before oral argument, Shadow died of cancer. That the
subject now is Misty alone requires particular consideration, as
we shall indicate.

1. The dog officer filed a complaint with the
selectmen shortly after January 10, 1997. The selectmen held a
public hearing on January 27, 1997, and heard witnesses, but no
transcript or findings are before us; we have only the
selectmen’s order that the dogs be killed ("disposal"
rather than "restraint" in the statute’s terms).
Pursuant to the statute, the owner, Evelyn Cullinane, took the
case to a clerk-magistrate of the District Court who — again
without transcript or findings before us — affirmed the
selectmen’s order, holding implicitly, we suppose, that the order
was not "without proper cause or in bad faith."
As the case passed to the District Court judge for "a de
novo hearing," there was some thought of returning it to the
selectmen, as Cullinane had lately made additional improvements
on the grounds of her home to prevent any mischief by the dogs,
and had sought further advice, now from an expert veterinarian.
The parties abandoned the thought of remand as it was understood
they could bring the situation up to date before the judge de
novo. The judge received evidence on both sides which was
recorded (although transcribed with many "inaudibles")[2]; she made findings and ruled for
disposal of the dogs. Upon Cullinane’s petition for certiorari to
the Superior Court, the parties cross-moved for summary judgment
on the record made at the de novo hearing, and the judge upheld
the ruling below. Cullinane appeals.

2. The evidence went as follows. Cullinane, for
eighteen years a teacher in the Andover public schools, bought
the dogs from the Buddy Dog Humane Society in December, 1995.
Shadow was then two years old. Cullinane kept the pair at her
residence in Maynard. At the time, Cullinane had a four foot
fence around her yard, and allowed the dogs in the yard when she
was at home, otherwise she kept them in the house. Rottweilers
are poor jumpers, but using snow banks accumulated during winter,
1996, the dogs were able to mount over the fence, and in March,
1996, they escaped and killed a rabbit at Catherine Loeb’s place
nearby.[3] Cullinane then for protection chained the dogs in the
yard. In April, 1996, she installed a surrounding fence seven and
one-half feet high and unchained the dogs.

In July, 1996, Cullinane entered the dogs in a
two-week training program at a K-9 academy and for four months
thereafter brought them back weekends for further training.

The dogs in October, 1996, began to outwit the
fence by burrowing under it, to which Cullinane responded by
trying to obstruct the passages. Nevertheless, the pair escaped
on November 30, 1996, and one (or both) tore the ear off a pet
goat at the local Bennett farm. Cullinane resumed chaining the
dogs but on January 10, 1997, this failed[4]
and the dogs turned up at Theresa Trioli’s place. Shadow seized
Trioli’s cat; Trioli managed to retrieve the cat; in the process
Shadow (seemingly in trying to get at the cat) snapped at Trioli
and clawed at her. The dogs ran on to Bennett’s place where
Shadow killed a goat and the dogs together damaged a sheep.

After the January 10 incidents (followed by the
selectmen’s hearing on January 27) Cullinane bought a twelve by
twelve foot heavy chain link kennel which is held fast to the
concrete base of an unused tennis court in the yard. She closed
off any chance of burrowing under the fence. She said the dogs,
if returned to her, would be allowed in the yard out of the
kennel only when she was present with them.

In April, 1997, Dr. Amy Marder, an experienced
veterinarian with expertness in animal behavior, retained by
Cullinane, had an evaluation session with the dogs at the dog
officer’s kennels. Upon the experiences recounted to her and her
own observations she concluded the pair had a predatory
aggression (incurable in her opinion) toward other animals, but
did not have an aggression or a vicious disposition toward
humans; she would not exclude a possible threat of injury to a
running child but thought such an event quite unlikely. She
believed management procedures could be adopted that would avoid
trouble even in respect to animals. She was satisfied with the
sealing qualities of the tennis court kennel (called by others
"fail safe" and a "fortress") and with the
materials at and below ground level of the fence. (Further
remarks about the evidence are reserved to point 3 below.)

3. The findings of record and the order of
disposal were directed to the dogs as a pair or team. For present
purposes we need say no more than that a ruling that the pair had
a vicious disposition, at least in regard to animals, was a
plausible result. The order for disposal of the pair, however,
was subject to the possible criticism that it was reached without
sufficient consideration of the several forms of the alternative
of "restraint"[5]– especially when we may surmise that Cullinane was a
conscientious owner and would no doubt have been willing to
accept any reasonable directions about how she should manage and
control the pair for the future.[6]

However all this might be, we now face the
intractable fact that there is no team — by Shadow’s death only
Misty remains. We can have no firm opinion about Misty’s
character or probable behavior as an orphan, for the triers did
not confront those questions, they were adjudging the pair or
team as such.

Nevertheless, the record does tell us something
about Misty as an individual. It is reasonably clear that Shadow,
the elder, was the dominant member of the team, and Misty the
follower. Cullinane and Wiltse, both close to the dogs over a
period of time and without motive for bias on the particular
question, affirm this relationship of dominance and dependency
between the dogs. Cullinane indeed speaks of Misty as
"sweet" and "docile." We have also the
testimony of Trioli with regard to the incident of the cat, and
of the caretaker Richard Monson regarding the second incident at
Bennett’s, that Shadow was the tougher of the two in action, with
Misty readier to back off and quit the game and return to a
handler.

Imponderable because unknown to us is the
present physical and psychological condition of Misty after a
reprieve of so many years in the kennels of the town’s dog
officer.

In all the circumstances justice would be
affronted by the prospect of carrying out now the order to
dispose of Misty, and justice requires that her case be remanded
for further consideration with leave to the parties to introduce
additional evidence appropriate to the purpose. We are in hopes
that Misty’s fate may be decided, if not by prompt agreement,
then by a brief proceeding.

The judgment of the Superior Court is vacated.
A new judgment shall enter remanding the case to the District
Court for further proceedings consistent with this opinion.

"If any person shall make complaint in
writing to the selectmen of a town, the officer in charge of the
animal commission or person charged with the responsibility of
handling dog complaints of a city, or the county commissioners,
that any dog owned or harbored within his or their jurisdiction
is a nuisance by reason of vicious disposition or excessive
barking or other disturbance, or that any such dog by such
barking or other disturbance is a source of annoyance to any sick
person residing in the vicinity such selectmen, officer in charge
of the animal commission or person charged with the
responsibility of handling dog complaints or county commissioners
shall investigate or cause to be investigated such complaint,
including an examination on oath of the complainant, and may make
such order concerning the restraint or disposal of such dog as
may be deemed necessary. Within ten days after such order the
owner or keeper of such dog may bring a petition in the district
court within the judicial district of which the dog is owned or
kept, addressed to the justice of the court, praying that the
order may be reviewed by the court, or magistrate thereof, and
after such notice to the officer or officers involved as the
magistrate deem necessary the magistrate shall review such
action, hear the witnesses and affirm such order unless it shall
appear that it was made without proper cause or in bad faith, in
which case such order shall be reversed. Any party shall have the
right to request a de novo hearing on the petition before a
justice of the court. The decision of the court shall be final
and conclusive upon the parties."

[3]Loeb asked the dog officer to
speak to Cullinane about restraining the dogs.

[4]It seems Cullinane and her friend
Robert Wiltse could have been somewhat more assiduous in trying
to locate the dogs after they learned around 6:30 A.M.
about the escape.

[5]The District Court judge thought
the experience related by Trioli indicated disposal rather than
"any milder method of dealing with the nuisance."

[6] In her brief — written before the death of Shadow –
Cullinane sought to attack the validity of the judgment appealed
from on a number of legal grounds that in the current situation
need not be fully explored. She discussed the right to trial by
jury in the District Court — but see Commonwealth v. Ferreri,
30 Mass. App. Ct. 966, 967 (1991); also Commonwealth v. One
1972 Chevrolet Van, 385 Mass. 198, 199-200 (1982). (Cullinane
made no timely demand for a jury.) So also she discussed the
scope of review by the Superior Court on the petition for
certiorari, as to which the discussion in Nercessian v. Board
of Appeal on Motor Vehicle Liab. Policies & Bonds, 46
Mass. App. Ct. 766, 772-773 (1999), would be found interesting.

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